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11/24/87 the People of the State of v. Kenneth Bollman

November 24, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH BOLLMAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 870, 163 Ill. App. 3d 621, 114 Ill. Dec. 715 1987.IL.1741

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Janura, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant appeals from his conviction and three-year sentence after a jury trial on a charge of aggravated criminal sexual abuse of a seven-year-old girl, M., in violation of section 12-16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)).

On appeal, defendant contends that the trial court erred (1) in allowing the People to offer evidence as to defendant's previous bathing with M. and with his own children; (2) in reserving its ruling on defendant's motion for a directed verdict of not guilty; (3) in allowing introduction of evidence of statements by M. regarding defendant's conduct with her; (4) in allowing introduction of evidence of statements by a friend of M.'s mother as to defendant's conduct with M.; (5) in allowing cross-examination of defendant as to whether he had bathed with his own children seven or eight years before the charged incident involving M.; and (6) in permitting defendant's former wife to testify in rebuttal and thereby allegedly to impeach him as to whether he had bathed with his own children. In addition, defendant contends (7) that because of these alleged errors and an allegedly improper closing argument by the People, his conviction did not rest on proof of guilt beyond a reasonable doubt, and (8) that his sentence was excessive. For the reasons set forth hereinafter, we affirm.

Facts I. PROCEDURAL HISTORY

Defendant Kenneth Bollman was arrested on November 13, 1984, and charged with criminal sexual assault upon M., who was the daughter of defendant's friend Karen. Thereafter, an information was filed, charging defendant with criminal sexual assault (count I), aggravated criminal sexual assault (count II), and aggravated criminal sexual abuse (count III). The date of the incident charged was September 29, 1984, when

During the earlier proceedings, defendant had filed a discovery motion. Defendant also filed a motion in limine that sought, inter alia, to prevent the People from introducing evidence of any acts by defendant earlier than the incident date.

At the close of the People's case in chief, defendant moved for a directed verdict of not guilty on all counts. The court denied the motion as to counts I and II but reserved its ruling as to count III until the beginning of closing arguments. The People later entered a nolle prosequi as to count I; subsequently, the court denied defendant's motion as to count III.

On April 8, 1986, the jury found defendant not guilty on count II but guilty on count III. After a hearing in aggravation and mitigation, defendant was sentenced to three years' imprisonment. II. TRIAL TESTIMONY

A. Of M. At trial, M. testified as follows in regard to the charged baby-sitting incident: After defendant told her to join him in the bathtub during his own bath and said that he would get out in a couple of minutes, she and defendant played a game of "bouncing down" and then washed each other. She washed his stomach, legs, and penis because he told her to do so, and he washed her chest, legs, and vagina. Defendant inserted his finger into her vagina, and she complained of pain; he replied that he was washing her vagina, and he continued for a little while. His penis also touched her vagina. She and defendant were in the tub together for about 10 minutes.

Over objection, M. testified that she and defendant had previously bathed together more than four times and that at such times she and defendant had occasionally played similar games and washed each other.

Over objection, M. also testified that sometimes, while she watched television with him and her brother in her living room, defendant "would rub me by my vagina and I would rub him by his penis" as the two of them sat on the couch under a blanket. M. twice testified that she had reported the charged bathing incident to her mother on the morning afterward.

B. Of Karen. Karen, M.'s mother, then testified as follows: On October 27, 1984, her friend Kimmy told her that Kimmy had overheard Karen's children talking about joint bathing between defendant and M. Until Kimmy's report, Karen had been unaware of any such joint bathing, but thereafter she asked M. about it, and M. said that she had bathed with defendant but that that was all. Approximately a week later, Karen asked defendant by telephone whether he had bathed with M., and he answered yes, that he didn't believe in modesty with children. On November 10, 1984, within about a week after questioning defendant, Karen talked with Kimmy again, and Kimmy said that she had been molested as a child, that she felt there was more to the bathing incident, and that Karen should question M. more extensively. Later on the same day, Karen again asked M. about the bathing incident, and M. told her more about it.

Defense counsel objected as to each of Karen's two references to conversations with Kimmy, and after each, the court instructed the jury that the testimony was being allowed not to show the truth of what Kimmy reported but merely to show that Karen was so informed and put on notice by Kimmy. Karen also testified that, contrary to M.'s earlier testimony, M. did not report the September 29 bath on the morning afterward.

C. Of Poss and Tomaso. Investigator John Poss, of the Schaumburg police department, and Assistant State's Attorney Al Tomaso testified as to statements made by defendant during two interviews at the police station. The statements allegedly included details on previous baths and instances of fondling between defendant and M. Tomaso also testified that defendant had said that he saw nothing wrong with taking a bath with such a child, that he was merely showing his love, and that what happened was no big deal.

D. Of Defendant. Defendant then took the stand and testified as follows: Between 1980 and 1984 he occasionally babysat for Karen's children and helped Karen with household chores. He had rectal surgery in 1984, and he would soak in the bathtub to relieve postoperative pain. He took 5 to 10 baths at Karen's apartment to relieve pain while babysitting, and Karen was aware of this. While bathing, he would leave the bathroom door slightly ajar in order to monitor the children's behavior. M. walked into the bathroom a couple of times while he was bathing, and her brother did so once or twice.

On September 29, 1984, M. entered the bathtub of her own volition and without waiting for his permission. She laughed and started bouncing up and down until he ran out of air, at which time he placed her between his feet and sat up. This was the only time he had ever taken a bath with M. He never intentionally touched her vagina with his penis or any other part of his body and never had any sexual contact or motivation while in the bathtub with her. M. had not told him that he was hurting her.

On occasion, he and M. had put their arms around each other while watching television, and he may have rubbed her stomach once or twice, but he and M. had never had sexual contact at such times.

Karen had never asked him about taking baths with M., and he had never told Karen that he had done so. He did not make numerous inculpatory statements that Poss and Tomaso had attributed to him. He never had sexual contact with M., and at the time of trial he was divorced and had three teenage children of his own. He regarded the bath with M. as having been completely uneventful. In reference to bathing with M. or to not believing in ...


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